Minimole v. Sub Collector, Alappuzha and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941** ## **WP(C).No.10873 of 2019** ## **PETITIONER:** **MINIMOLE,** **AGED 32 YEARS, D/O.ANIRUDHAN, RESIDING AT UDUMBACKAL HOUSE, PURAKKADU MURI, PURAKKADU VILLAGE, ALAPPUZHA DISTRICT-688561.** **BY ADVS. SMT.P.V.SREELATHA SMT.JYOTHI JOSEPH** ## **RESPONDENTS:** |**1**|**THE SUB COLLECTOR,ALAPPUZHA/**| |---|---| ||**THE CONVENER,**| ||**DISTRICT LEVEL MONITORING COMMITTEE,**| ||**ALAPPUZHA-688001.**| |**2**|**THE SECRETARY,**| ||**PURAKKAD GRAMA PANCHAYATH,**| ||**PURAKKAD P.O., ALAPPUZHA,**| ||**PIN-688561.**| |**3**|**AGRICULTURAL OFFICER,**| ||**PURAKKAD, AMBALAPPUZHA-688561.**| |*** ADDL.R4**|**THE DISTRICT COLLECTOR,**| |---|---| ||**ALAPPUZHA-688 001.**| |*****|**IMPLEADED AS ADDITIONAL 4TH RESPONDENT**| ||**VIDE ORDER DATED 25-07-2019 IN I.A.NO.1/2019.**| **R1, R3 & SRI MANU RAJ K.J., GOVERNMENT PLEADER ADDL.R4** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.10873 of 2019** -2- ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of a property having an extent of 3.24 Ares comprised in Re.survey No.218 in Sub Division No.6 of Purakkad Village in Ambalapuzha Taluk, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 order dated 11.12.2018 issued by the 1[st] respondent; and a writ of mandamus commanding the respondents to take appropriate steps in a time bound manner to grant permission to convert the property having an extent of 3.24 Ares comprised in Re.survey No.218 in Sub Division No.6 of Purakkad Village in Ambalapuzha Taluk, so as to enable the petitioner to build a residential house for her. 2. On 25.07.2019, when this writ petition came up for consideration, this Court allowed I.A.No.1 of 2019 filed by the petitioner seeking an order to implead the District Collector, Alappuzha as additional 4[th] respondent and I.A.No.2 of 2019 seeking an order to accept Exts.P5 and P6 **WP(C).No.10873 of 2019** -3- as additional documents. The learned Government Pleader was directed to get instructions on the additional documents placed on record. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents 1, 3 and also for the additional 4[th] respondent. Considering the nature of relief proposed to be granted, service of notice on the 2[nd] respondent, who is the Secretary of Purakkad Grama Panchayat, is dispensed with. 4. The petitioner moved an application seeking permission to construct the residential building in the property having an extent of 3.24 Ares comprised in Re.survey No.218 in Sub Division No.6 of Purakkad Village in Ambalapuzha Taluk and the said application stands rejected by Ext.P3 order dated 11.12.2018. In the said order, it is made clear that it is appealable before the additional 4[th] respondent. The document marked as Ext.P2 would show that the application made by the petitioner for building permit to construct a residential building in the property in **WP(C).No.10873 of 2019** -4- question is kept pending before the 2[nd] respondent Secretary of Purakkad Grama Panchayat, since the property is included in the data-bank as a 'paddy land' and any construction can be made only with the orders of the Local Level Monitoring Committee and the Revenue Divisional Officer. During the pendency of this writ petition, the petitioner has moved Ext.P5 appeal before the additional 4[th] respondent District Collector. 5. The learned Government Pleader would submit that the said appeal is pending consideration. The learned Government Pleader would point out that the property in question is one purchased by the petitioner in the year 2009, as stated in paragraph 2 of the writ petition, i.e., after the commencement of the provisions under the Kerala Conservation of Paddy Land and Wetland Act, 2008. 6. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative **WP(C).No.10873 of 2019** -5- remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 7. In **Authorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be **WP(C).No.10873 of 2019** -6- entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case (supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory **WP(C).No.10873 of 2019** -7- dispensation. 8. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of **WP(C).No.10873 of 2019** -8- evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 9. In **Titaghur Paper Mills' case (supra)** a ThreeJudge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the **WP(C).No.10873 of 2019** -9- Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in **Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336]** at page 356 in the following passage: "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd.[1919 AC 368]** and has been reaffirmed by the Privy Council in **Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of** **WP(C).No.10873 of 2019** -10- **State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 10. In **Pavithran V. State of Kerala (2009 (4) KHC 4)** , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 11. In view of the statutory remedy available under sub-section (6) of Section 9 of the Kerala Conservation of Paddy Land and Wetland Act, the petitioner cannot challenge Ext.P3 order, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition. 12. Since the petitioner has already moved an appeal before the additional 4[th] respondent, as evidenced by Ext.P5, this writ petition is disposed of by directing the additional 4[th] respondent to consider and pass orders on Ext.P5 appeal filed by the petitioner against Ext.P3 order, strictly in **WP(C).No.10873 of 2019** -11- accordance with law, with notice to the petitioner and after affording her an opportunity of being heard. It is made clear that this Court has not expressed anything as to the maintainability of Ext.P5 appeal or the merits of the contentions raised therein and it is for the additional 4[th] respondent to take an appropriate decision, strictly in accordance with law, taking note of the provisions under the statute and the law laid down by this Court on the point. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No.10873 of 2019** -12- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF RATION CARD. EXHIBIT P2 TRUE COPY OF THE INTIMATION BEARING NO.A9-5620/17 DATED 31.10.2017 FROM THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE ORDER NO.T.A. (3)/7932/18/L.DIS. DATED 11.12.2018 FROM THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 22.12.2018. EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 10/4/2019 BE FORE THE DISTRICT COLLECTOR, ALAPPUZHA. EXHIBIT P6 TRUE COPY OF THE RECEIPT ISSUED FROM THE COLLECTORATE.** **RESPONDENTS' EXHIBITS: NIL**